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Imagine: you are sitting in the park with your friends, killing time before dinner. Across the way, you hear a commotion. There’s a man who appears to be homeless surrounded by a few police officers, everyone yelling at each other. As you approach, one officer grabs the man, and you see him placed in handcuffs. Suddenly, he’s thrown to the ground. So you take out your cellphone, and start recording. You are told to scram.
If what happens next is you are detained by the other police officers and your phone confiscated, have your constitutional rights been violated? According to the Eastern District of Pennsylvania’s February 19, 2016 decision, the answer is no.
But what about the First Amendment?
According to the decision, because you did not utter “magic words” to alert the officers that you were recording them because you were critical of their conduct, your actions are not protected by the First Amendment.
Thus, the decision is troubling. The Court rejected the argument that observing and recording is in and of itself a form of “expressive conduct” requiring First Amendment protection. That reasoning seems to run contrary to common sense. Of course, speech, or lack of speech, is relevant to the determination of whether someone is engaged in expressive conduct. But speech – actual spoken words, without more – has never been the sine qua non of First Amendment protection. The Court’s decision did not demonstrate that the police officers involved were in any actual or even perceived harm. So the Court’s determination that observing and recording police activity in a public place, without expressly stating that it is done for the purpose of criticism, does not warrant First Amendment protection is belied by obvious inference that the police officers involved understood the conduct to be a form of criticism.
The Court appeared to ignore the fact that the First Amendment protects the public’s right to gather information for public dissemination. This is, of course, where newspapers come from. Although the court noted that the individuals who were recording did not expressly intend to disseminate what they were recording, the right to gather and disseminate information includes the right to video record public activity that is not yet but may become worthy of public dissemination.
Another problem with the decision is it provides little helpful guidance to police officers. While Philadelphia’s Police Department issued a directive to its officers that they should accept and expect being filmed or photographed while performing their duties in public, officers in other municipalities must reconcile the decision with the Third Circuit’s finding that “photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.” These officers, therefore, must make a determination on a case by case basis whether a particular instance of photography or videography has a communicative or expressive purpose. From a cynical point of view, the decision gives wayward officers leeway to cover-up their own misconduct.
The solution is the rule urged by the plaintiffs in the decision. Photographing or video recording police officers in the performance of their duties in public should be protected by the First Amendment.
It is expected that the plaintiffs will appeal the District Court’s decision to the Third Circuit, so stay tuned for further commentary as the appeal develops.
by Chris Markos